Friday, October 8, 2004
Rivers Act makes property development difficult
Careful study of the text of the Rivers Act appears to have derailed plans for a three-car garage and storage shed on Mill Pond Lane. Architect Chip Dewing, arguing the case for a negative finding on a Request for Determination of Applicability (RDA) filed by Norman and Piper Lind, presented the results of a complete flagging of the boundaries of a nearby wetland, and more importantly a riverfront area, at a continued hearing before the Carlisle Conservation Commission (ConsCom).
200-foot buffer zone
Unfortunately for all concerned, the hiatus between September 9 and September 23 had provided sufficient time for the commissioners to have read the small print in the state's complex legislation. Apparently satisfied with the technical, economic and aesthetic logic offered by Dewing, at least in reference to the Wetland Protection Act, the commissioners had found that the same rationale would not be acceptable under a key provision of the Rivers Act. That law makes it clear that no construction can take place within the 200-foot buffer zone of a river or perennial stream unless it can be proved that no alternate site is available outside the restricted area. Granting that there were a number of subsequent tests to be navigated and that the applicants could probably pass them, commissioners were convinced that these became moot points until that prime condition had been met.
Following a site visit Commissioner Diane Troppoli agreed with the applicants and their consultants, that although an alternate location did exist, it would require much more grading and removal of many mature trees. To which Commissioner Brownrigg added that for the board to issue a Negative Determination on those grounds and waive the need for a more stringent and expensive Notice of Intent, the applicants would have to provide a clear, detailed analysis to convince them that there was no other suitable site outside the River Front zone. Chair Roy Watson assured the Linds that he and his colleagues had "struggled to find a comfort level" for approval using the data at hand, but after careful study of the Rivers Act ,"we can't see a way out."
Dewing then asked, "If we did come in with an NOI [containing such an analysis] do you think you'd okay it?" The commissioners indicated they couldn't give an answer without the data. "Well then, would there be any benefit to continuing the RDA hearing" he inquired? Troppoli hazarded a guess, "I can't imagine how you can come up with an acceptable alternative analysis," but that's up to you. In short order, the board issued the Positive Determination, leaving the matter of an eventual NOI up to the applicants.
© 2004 The